Police v Tauauve'a [2010] WSSC 130 (24 November 2010)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE

Prosecution

AND:

LAUVI IOAPO TAUAUVE'A
male of Sataoa
Defendant

Presiding Judge: Justice Vaai

Counsel: Leone Su'a and Tiffany Nelson for the prosecution
Tanya Toailoa for the defendant

Sentence: 24 November 2010

SENTENCE

1. The accused pleaded not guilty to the charge of murder. After a four day trial the assessors found the accused not guilty of murder but guilty of manslaughter of which he is liable to a maximum penalty of life imprisonment.
   
2. The circumstances which resulted in the offending are very unfortunate, sad, but very tragic. On Christmas day of 2008 after the church service the accused's family decided to have a BBQ to celebrate Christmas. It was a small gathering restricted to close family members. There was music. The women about three of them were playing cards inside the main house, whilst the accused and three other family members were drinking alcohol by the small hut next to the main fale.
   
3. About late afternoon, the accused and another member of the drinking party drove away to buy more beer, leaving behind the accused's half brother and cousin who soon after the departure of the accused started to argue and proceeded to a fight. Two of the women inside the house tried unsuccessfully to stop the fight.
   
4. The cousin was injured in the fight. He was struck on the face with a stone and he was bleeding. The half brother was sent home and he left. When the accused returned to the party his injured cousin was disorderly and a nuisance. The noise generated by the drunken cousin attracted neighbours and others on the road who went to look.
   
5. The accused became angry with his cousin. He assaulted his cousin by first punching him several times causing the cousin to fall on the ground in front of the main house. The accused was restrained by others who have come to the scene. He was taken to the small hut where others tried to calm him down.
   
6. In the meantime the cousin got up from the ground and went inside the main house where the accused's wife and other women were playing cards. At that moment the accused followed his cousin inside the house. He was holding a small knife. Women inside tried unsuccessfully to shield the cousin from the accused. The cousin ran towards the rear door of the house pursued by the accused who caught the cousin before he opened the door and was stabbed twice.
   
7. The first stab was to the abdomen causing the cousin's internal organs to protrude out. The wound caused by this stab was about two inches deep. The second stab was to the left side of the chest under the armpit. It was about four inches deep perforating the left lung and part of the thoracic aorta. The cousin staggered out of the house, walked a short distance and collapsed. Excessive bleeding from this second wound caused the death of the cousin.
   

Prosecution Submissions

8. It was contended by the prosecution that the violence displayed by the accused when he pursued and attacked the cousin inside the house is on the higher end of the scale. Pursuit by the accused of his cousin into the main house followed when the cousin went into the house to seek refuge with the women folks and after the accused was restrained and calmed down by others at the scene.
   
9. By arming himself with a knife when he pursued his cousin into the house and by continuing to pursue his cousin to the rear door of the house where he was viciously stabbed twice is an unequivocal display of aggressiveness and hatred at the time when the cousin was not a threat to anyone or behaving in a provocative manner.
   
10. Immediately after the stabbing and with full knowledge that his cousin was seriously wounded, the accused called out:
    

"it is finished, I will now go to prison" is an indication that he had no remorse for what he did to his cousin.

The prosecution contended this remark signalled the accused's level of anger and lack of remorse at the time.

11. Given the weapon used, the severity of the injuries, the appalling circumstances surrounding the offending, the loss of a human life and the impact of the offending on those close to the cousin, the prosecution seeks a term of imprisonment of not less than 10 years imprisonment.
    

Defence Submissions

12. The accused is 43 years old married to a Tongan national and have five children ranging from 1 year to 16 years old. At the time of the offence they were living at the accused's family at Sataoa village.
    
13. As the care given and provider for his five children, an imprisonment sentence will profoundly affect his 5 children who will have no option but to travel with their mother to Tonga to live in conditions worse off than what they were accustomed to. In the interests of the children counsel contends a term of imprisonment should not be imposed.
    
14. Given also his impeccable record as a father, as a resident of Sataoa village as well as in his previous employment he is not a risk to the community if given a non-custodial sentence.
    

Discussion

15. The aims and objectives associated with sentencing are well established. Protection of the community is the primary function while at the same time exercising appropriate measure of mercy as the surrounding circumstances justify. There is also the applicability of those principles associated with retribution relative to the gravity of the criminal conduct, the degree of culpability of the accused, the impact of deterrence on the accused and the community and finally whether the considerations of reparation and rehabilitation should be factors to be applied in the sentencing process.
    
16. Children of any accused person will always be victim's of any serious offending. So are the immediate family and close friends of the accused. The rights and interests of the children of the accused are factors which the court must take into consideration as the court is obligated to respond to our international obligation under the Rights of the Child Convention.
    
17. A care giver is not to be confused with provider. In this case the accused and wife are both providers and care givers of their children. He is not the sole care giver although he is the major provider. I am not persuaded by the contention that the accused's wife and the five children will be obligated to go to Tonga to live if the accused is given an imprisonment sentence. They have been living in Samoa for some 16 years amongst the accused's immediate and extended family. At the time of the offending they were living with the accused's family at Sataoa village and there is nothing to stop the wife and children returning to Sataoa as they were not banned by the village as a result of the accused's offending.
    
18. In considering the interests of the child in the sentencing process the court has to consider two competing interests. The first is the importance of maintaining the integrity of family care. It is the family which create security for the child, sets a limit on the child's behaviour, provide spiritual guidance and instill notions of discipline. The second consideration is the duty of the state to punish criminal conduct.
    
19. The circumstances of the accused's offending brings into prominence the application of the second consideration. The two stab wounds were both very serious. Indeed the second stab was so vicious, the blade of the knife was imbedded in the chest of his cousin and was only removed during the post mortem operation.
    
20. Mover over the stab wounds were inflicted after the first assault outside the main house where the accused was restrained and calmed down and his cousin had gone inside to seek refuge with the women folks. But the accused decided to give his anger full vent. He went inside the house and despite attempts by his wife and other women folks the accused pursued his cousin and lashed out with two stab wounds.
    
21. As I said at the commencement of this sentence the circumstances surrounding the offending are very sad but tragic. It is sad because the accused is a very intelligent educated person, a dedicated father and husband, he has an impeccable employment record and a respected leader and citizen of his village. It is also sad because his dead cousin was like a brother to him. It is particularly sad because his wife and children have suffered and will continue to suffer.
    
22. I accept his remorsefulness. He has truly regretted the events of Christmas of 2008. A substantial term of imprisonment is however warranted. I treat the accused as a first offender despite his previous conviction record.
    

Sentence

23. Taking into account the aggravating and mitigating features of the offending I set 12 years as the starting point. There are no aggravating features personal to the accused which requires the starting point of 12 years to be increased.
    
24. But there are mitigating factors which must result in the starting point of 12 years to be reduced. For his previous good record and remorse I deduct 3 years. For the apology and substantial contribution to the funeral expenses I deduct a further 12 months. The accused is sentenced to 8 years imprisonment less any time he spent in custody.
    

JUSTICE VAAI